Article excerpt

Abstract: The Arab Spring was a period of great transition in the Middle East and North Africa, when people in many nations united in protest against their oppressive and tyrannical governments. In February 2011, the Libyan people filled their city streets in peaceful demonstrations against Muammar Gaddafi's regime. Attempting to quell the dissent, the Gaddafi regime allegedly engaged in a systematic campaign of violence against the dissidents. These attacks escalated into a full-fledged civil war, triggering United Nations intervention to protect civilians. In response to the Gaddafi regime's attacks on civilians, the UN Security Council passed a resolution referring the alleged human rights abuses to the International Criminal Court (ICC) for prosecution. This Comment explores the effect of the warrant, the ICC's complementary jurisdiction over the matter, and argues that both Libyan and ICC officials should be instrumental in trying the accused members of the Gaddafi regime.

Introduction

On May 16, 2011, the prosecutor at the International Criminal Court (ICC), Luis Moreno-Ocampo, filed warrants for the arrest of Muammar Mohammed Abu Minyar Gaddafi, Saif al-Islam Gaddafi, and Abdullah al-Senussi for alleged human rights abuses in connection with the 2011 Libyan uprising.1 The prosecution accused these three men of planning and implementing "widespread and systematic attacks against a civilian population, in particular demonstrators and alleged dissi- dents."2 Using the Libyan armed forces as agents, the men allegedly detained, tortured, and killed hundreds of civilians in an attempt to suppress the growing popular challenge to Gaddafi's authoritarian rule.3 Judge Sanji Monageng of the ICC issued warrants for their arrest and ordered the men to stand trial at the Hague for human rights abuses pursuant to its prosecutorial power.4

Part I of this Comment provides a brief background on the Gad- dafi government, the 2011 civilian uprising and its connection to the Arab Spring, and the alleged human rights abuses of the Gaddafi re- gime. Part II focuses on the ICC's jurisdictional powers and its ability to legitimately and effectively prosecute crimes against humanity, while also respecting domestic criminal jurisdiction. Part III analyzes the ap- propriateness of the ICC as the proper tribunal for prosecuting the ac- cused. This section explores the available alternative options for prose- cution, such as the post-revolution Libyan courts or a hybrid prosecution in Libya involving both ICC and Libyan officials. It will also demonstrate that the ICC is the proper organization to undertake the prosecution, although the Hague may not be the ideal location. Lastly, this section also explores the prudence of the ICC issuing the warrant during Gaddafi's reign and the deepening civil war.

I. Background

A. A Pattern of Abuse: Gaddafi and His Government

Muammar Gaddafi seized power in Libya in a bloodless military coup on September 1, 1969, replacing the ruling Sanusi Monarchy.5 Gaddafi assumed a key position in the Revolutionary Command Coun- cil, and his powers gradually coalesced from revolutionary leader to authoritarian autocrat.6 Gaddafi consolidated his power by capitalizing on the nation's oil reserves, and propagandized his revolutionary and social philosophy through the dissemination of his Green Book? With his control solidified, Gaddafi ruled Libya continuously from 1969 until his overthrow and death in 2011.8

Under Gaddafi, the Libyan government allegedly committed nu- merous human rights abuses and state-sponsored acts of terrorism, in- cluding the infamous 1988 Lockerbie bombing.9 In response to these abuses and criminal acts, Gaddafi's regime faced international reprisals throughout his reign, including both military intervention and eco- nomic sanctions.10 Though Gaddafi appeared to relax his belligerent attitude when he abandoned the Libyan nuclear program under inter- national pressure in 2003,11 his response to the recent popular uprising demonstrated his continued disregard for human rights. …

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